Adapting to the new era of family law
How are family lawyers aligning people, processes and technology as societal transitions challenge the traditional legal framework?
By Lucy Saddleton, Managing Editor, ADB Insights
Transformational shifts in society in recent years - together with immense technological advances and growing economic struggles - have paved the way for family law firms to rethink their business plans. A rise in remote workplaces, virtual hearings and online dispute resolution practices have challenged the traditional legal framework, while evolving laws are creating new challenges and opportunities.
Leading Canadian family lawyers and industry experts came together at the Legal Innovation Forum’s Family Law Webinar earlier this month to discuss the drivers that are shaping the way they operate, and to divulge their strategies for innovative practice management.
Speakers noted that the development of common law property rights is driving more litigation cases.
DRIVERS & TRENDS
“People still need to remember you're advancing these cases along the lines of trust law, so really you need to prove the principles of unjust enrichment.” said Kenneth Younie, a partner at Vanderschoot Family Law. “You need to prove that somebody was enriched and the other party was deprived, and there's no juristic reason for that.”
As there are no automatic property rights for unmarried couples in Ontario, these cases can be difficult to settle, Younie added.
The rise in high-conflict litigation is driving high legal costs, so many clients are self-representing or seeking limited scope retainers.
Kenneth Younie, Partner, Vanderschoot Family Law
“One of the things that I've been seeing is people are looking to retain a lawyer on a more limited basis, to help them get to a particular stage in the proceeding,” said Jennifer Eensild, associate lawyer at MFC Lawyers LLP. This can have advantages and disadvantages, Eensild said. On one hand it allows a client with a limited budget to get legal help, but it can sometimes end up being more costly for the client if they need further assistance from the lawyer at the end of the trial.
The underfunding of legal aid is having an impact on the rise of self-represented parties, which also increases the cost for those who do seek legal representation, Eensild noted.
Sarah Durcikova, associate at MacDonald & Partners LLP added that not only do self-represented litigants face logistical problems, but there may be other challenges such as a lack of access to technology, and potential language barriers.
Jennifer Eensild, Associate Lawyer, MFC Lawyers
“There are economic challenges, and there’s also limited judicial resources available to parties in general, whether one is self represented or represented,” said Durcikova. “The sad reality is at one point in time, an individual will be self-represented. There are challenges with qualifying for legal aid. There's intersectionality, that is really driving family law into a different form.”
Sarah Durcikova, Associate, MacDonald & Partners
Criminal law proceedings can sometimes overlap with a family law case, thus impacting a parent’s right to see their children, Durcikova added.
The high immigration rate in Canada is also having an impact on the practice of family law. For example, family lawyers are seeing cases in the Court of Appeal that deal with Muslim marriage contracts - known as a Maher.
“You have the issue of what is promised in this Maher,” said Amit Dror a partner at Stanchieri Family Law. “What I've seen in my own practice is that the common thing to promise is pieces of gold, or some sort of gold coins, and the price of gold has gone up in the last 30 years quite significantly, so then you have this valuation problem.”
Another issue that sometimes arises is the discrepancy between the date of marriage of a religious ceremony versus the date of the civil marriage, which can be many months later.
“You then have an issue of ‘what is marriage?’ for the purposes of determining that family property,” said Eensild. “I have seen it used as a way to try and gain an advantage in equalization to boost property as of the date of marriage, or reduce debt.”
Since its rapid acceleration in use during the pandemic, virtual court has added a new dimension to the practice of family law, with many courts now taking a hybrid approach. Our speakers discussed the pros and cons.
“I definitely see the advantages of having a trial in-person,” said Durcikova. “It's a lot easier to hand a witness a document and say, ‘look, this is what you said,’ as opposed to pointing to a document online.” In-person court also provides different learning opportunities for younger lawyers, such as the custom of bowing to the judge, she added. Some witnesses may not have access to technology so in-person court is also advantageous in this case.
However, our speakers noted the many advantages of virtual court, including the ability to serve in multiple jurisdictions, and the increased efficiency.
“There was kind of a great leap forward in terms of getting access to electronic documents,” said Younie. “It’s much easier using a laptop instead of rifling through stacks of paper.”
Amit Dror, Partner, Stanchieri Family Law
PRACTICE MANAGEMENT
Speakers in the second session of the Legal Innovation Forum’s family law webinar discussed how they are setting a strategic vision in line with the evolution of the practice of family law, and how they are managing costs and navigating financial risks to protect the bottom line of the business.
COVID was a major catalyst to remote work for many practices. For James Studer - a lawyer at Galbraith Family Law - the transition was easy, as the firm had already started to move to a hybrid set-up pre-pandemic, with a cloud-based file-storage system in place.
“Since the pandemic, we’ve continued on the plan that we had which was reducing days in the office, which reduces costs, and gives people more flexibility to work at home and manage their own schedules,” said Studer. “Clients don't have to come to the office every time they need to sign a document, so we meet them where they want to be met,” he added.
James Studer, Lawyer, Galbraith Family Law
At litigation financing firm BridgePoint Financial, chief business development officer Tim Andrews noted that an increase in the use of digital solutions for document management has accelerated the development and adoption of related AI-integrated solutions which can greatly benefit clients.
In another trend, Andrews said that socio-economic shifts have impacted the family law landscape.
“We’re seeing people lacking liquidity when they enter the separation process, and this impacts access to family law counsel as certain parties are disadvantaged, which ultimately creates an access-to-justice issue,” said Andrews. “If clients don't have financial liquidity, there are other options before going down the slippery slope of using credit cards.
Tim Andrews, Chief Business Development Officer, BridgePoint Financial
The speakers went on to discuss how they are mitigating financial risks to improve the profit margin for the firm. While rental costs have dropped post-pandemic with the rise of remote work, software and technology costs have increased for family law firms. All the panelists agreed that regular and frequent billing is key.
“We bill monthly and sometimes bi-weekly because it keeps our risk low,” said Studer. “If you get halfway through a file, and the client doesn’t have the money to continue, you’ve potentially wasted a lot of money, whereas if you'd had a discussion early on and you know they can’t afford the full blown litigation, you can talk about a limited scope retainer, which ultimately is much more beneficial for the client.”
Although technology can be costly, it is essential to be competitive in the family law space. AI is a valuable tool to simplify workflows, according to Russell Alexander, a lawyer at Russell Alexander Collaborative Family Lawyers.
“In two or three years, AI is just going to be another tool in the toolbox,” said Alexander. “We're using it in every aspect of our practice.” Not only does Alexander use AI to create marketing plans, documents and digital financial statements, but it can even create videos using his image.
Russell Alexander, Lawyer, Russell Alexander Collaborative Family Lawyers
“You're not going to be replaced by AI, but you'll be replaced by a lawyer using AI, so you want to get on the train and start learning about this technology,” he advised.
“We also need to be mindful of our rules of professional conduct and supervise our team members who are using AI and use it in an ethical way, so it doesn't mislead the court or the public,” Alexander added.
With the rise of AI, firms can expect the death of the billable hour, with tasks that once took days now being completed in hours or minutes.
“Ultimately, it will save clients money, but it will also help reimagine how firms approach their billing practices,” said Andrews.
Speakers agreed that client communication is essential to build relationships and develop trust. BridgePoint is developing an SMS system to update clients automatically on their files, for example.
“They’re always in the know and they can follow up with us at any point,” said Andrews. Being transparent about costs is also critical, he added.
“Having that conversation upfront about financial expectations can really assist in making sure the relationship goes smoothly, until the resolution of the file,” said Andrews.
The webinar was moderated by Madison Gleis, owner and principal lawyer at Gleis Law, and Heather Suttie, legal market strategy & management consultant at Suttie.